Shealy & Brother v. Clark

Cobb, J. This case comes before us upon assignments of error complaining of the overruling of a demurrer and the refusal to grant a new trial. Applying the principle laid down in the case of Saulsbury v. McKellar, 59 Ga. 301, the petition set forth a cause of action. The fact that in that case Saulsbury had in his possession cotton which he knew was subject to a special lien for rent in favor of McKellar, and that McKellar had sued out or was about to sue out a distress warrant and levy the same thereon, would not prevent the principle ruled in that case from applying in a case like the present, where the conduct which lulled the agent of the landlord into security was at a time when Shealy was not in possession of the crop and no distress warrant was at that time actually sued out or in terms threatened. What brings the present case within the principle of the Saulsbury case is that the conduct of Shealy was such as to lull Greer, the agent of the landlord, into the belief that his rent was safe, and that as a consequence of this belief he allowed Shealy to take possession of the crop of the tenant, and desisted from any purpose to enforce the landlord’s special lien for rent on the crop. There certainly can be no material difference in principle between a case where the landlord is so lulled into security that he allows another to take possession of his tenant’s crop without any effort to enforce his lien thereon, and a case where another has already come into possession of a crop subject to the lien, with notice thereof, and the landlord is then lulled into security simply as to the necessity for the enforcement of his lien. If in the latter case, where the crop has already passed out of the possession of the tenant, an implied promise on the part of the possessor to pay the- rent to the landlord would arise, it would seem that for a stronger reason an implied promise would arise to .pay the rent where the landlord was lulled into security and as a consequence possession of the crop was obtained from the tenant. We can see no difference in principle between the cases. It is said, though, that the plaintiff was not entitled to recover, because there was no allegation or proof that the tenant was insolvent, and that for aught that appears the rent might have been collected from [798] other property of the tenant. The landlord had a special lien for his rent upon each and every part of the crop raised upon the premises, and neither the tenant nor any one else could have required him to go upon any particular part of the crop. See, in this connection, Coleman v. Allen, 79 Ga. 644-646; Couch v. Davidson, 109 Ala. 313, s. c. 19 So. 507; Taylor v. Felder, 5 Tex. Civ. App. 417, s. c. 23 S. W. 480. If the conduct of Shealy & Brother was such as to amount to a promise on their part to pay the rent, the plaintiff had the right to resort to this promise, notwithstanding they had left upon the premises sufficient property to pay the rent. So far as this question is concerned, the evidence was directly conflicting, and the jury could have found that there was not sufficient property left upon the premises to pay the balance due on the rent. It was contended that the verdict was unauthorized, because the promise to pay the rent was made by one of the Shealys only, and that there was no obligation to pay the rent on the part either of the other Shealy or of the firm. On this question the evidence was distressingly conflicting, but there was evidence authorizing a finding that the Shealy who was a party to the transaction with the agent of the landlord was acting in all that he said and did in behalf of the partnership of which he was a member. We find no error requiring a reversal of the judgment. Judgment affirmed. All the Justices concur.